Subversion case politically motivated
By Stefanus Haryanto
BANDUNG (JP): In the aftermath of Black Friday, where at least 15 people died in clashes between student demonstrators and security officers, the police questioned a number of opposition figures suspected of committing a seditious conspiracy.
They included Gen. (ret) Kemal Idris, chairman of Barisan Nasional (National Front Group), Hariadi Dharmawan, Roch Basoeki Mangoenprojo, Ali Sadikin and others who were signatories of a joint communique calling for the establishment of a provisional People's Consultative Assembly (MPR) and a presidium which would serve as a provisional government. The police said they had allegedly violated Articles 107 and 110 of the Criminal Code.
These articles are part of the provisions on crimes against the security of the state. Article 107 stipulates that one who commits a subversive act to overthrow the legitimate government is subject to 15 years imprisonment; whereas Article 110 (1) stipulates that a seditious conspiracy to commit crimes stipulated in Articles 104, 106, 107 and 108 of the Criminal Code is punishable with the same punishment for each crime. However, Article 110 (4) provides that those who only have the intention to prepare or facilitate changes in Constitutional Law in general terms are not subject to any punishment.
Kemal's defense lawyer, Adnan Buyung Nasution, categorically denies that his client's activities are "subversive", adding that "there has been a (seemingly deliberate) effort to divert attention from the issue of military brutality and focus it on the issue of subversion ..." (Jakarta Post, Nov. 16, 1998).
Setting aside the somewhat "political" nature of Nasution's statement, whether issuing a joint communique calling for the establishment of a provisional People's Consultative Assembly and a provisional government is a subversive act or not is quite a controversial question.
Under the Indonesian legal system, one can be considered as committing seditious conspiracy if they knowingly conspire to overthrow the legitimate government, and some steps or overt acts have been taken for that purpose.
Thus, two important elements must be proven by the prosecutor if he or she wants to succeed in arraigning those who are indicted for seditious conspiracy. First, the element of criminal intent (the intention to commit a crime). Second, the element of an overt act which has been taken by the perpetrators.
Dr. Loeby Loqman, a criminal law expert from the University of Indonesia, said that there are two theories regarding seditious conspiracy. The first is a subjective theory which stipulates that seditious conspiracy is committed merely on the basis of the existence of the intention to overthrow the legitimate government. The second is an objective theory which stipulates that the existence of a mere intention is not enough for indictment for seditious conspiracy. An overt act or preliminary actions must be conducted before one can be accused of committing seditious conspiracy.
Dr. Loqman, in a television interview, said that the objective theory is the one adopted by Indonesia and other democratic countries. For example, in the United States, communication or agreement which has as its objective the stirring up of treason or certain lesser commotions, or the defamation of the government is considered sedition.
It is also stipulated that sedition is advocating, or with knowledge of its contents knowingly publishing, selling or distributing any document which advocates, or with knowledge of its purpose, knowingly becoming a member of any organization which advocates the overthrow or reformation of the existing form of government by violence or unlawful means (see, 18 U.S.C.A. 2383 et seq).
Thus, it seems that the U.S. also adopts objective theory since the prosecutor must establish proofs beyond reasonable doubt that the defendant has already conducted an overt act (violence or unlawful conduct) for overthrowing the legitimate government.
In the case of Kemal Idris and his fellow members of Barisan Nasional, it is very important that the police find preliminary evidence to prove that he has committed an unlawful act. In other words, the police must clearly establish that the joint communique is an unlawful act, and not just an expressed "political statement" which is guaranteed by the 1945 Constitution.
Regardless of which theory is adopted by the Indonesian judiciary, it seems quite clear that the indictment of Kemal Idris and his fellow members of Barisan Nasional is politically motivated.
Therefore, if the case goes to trial, the arguments which will be put forward during the hearings will be dominated by political arguments. The defense lawyers may try to argue that if their clients actions are considered as seditious conspiracy, Habibie's government must also arraign Abdurrachman Wahid, Amien Rais, Megawati and others reformists for the same reason, since their active participation in overthrowing Soeharto's government was also a "conspiracy".
After all, Habibie's government is a product of the "subversive" acts committed by Indonesian students in their May 1998 movement.
The writer is a lawyer and lecturer at the Faculty of Law at Parahyangan Catholic University, Bandung.